Narrowly Tailored —

Leaked: US proposal on copyright’s limits

A TPP draft looks more restrictive than some had hoped.

Late Friday, a few short paragraphs of text were leaked that revealed something of the terms on fair use being negotiated in secret by the Trans-Pacific Partnership. The TPP is a treaty currently being negotiated by nine Pacific Rim countries seeking to establish a new free-trade agreement on many issues, including intellectual property. The next negotiating round is set for early September in Leesburg, Virginia.

Much has been made of the secrecy in which the TPP has enshrouded its negotiations for an international trade agreement. In May, 30 scholars wrote to the US Trade Representative (USTR) asking for more transparency in the decision-making process, and critics have routinely claimed that such processes cater largely to narrow rightsholder interests.

Back in July, a USTR spokesperson said the trade agency would push for rules "that will obligate Parties to seek to achieve an appropriate balance in their copyright systems in providing copyright exceptions and limitations for purposes such as criticism, comment, news reporting, teaching, scholarship, and research." But in the new leaked draft text, while very similar phrasing appears, there seems to be room to crack down on any anticipated broad terms of fair use.

The US and Australia, for instance, proposed what entities like the EFF and KEI fear could be a rightsholder-friendly three-step test to determine what exceptions to copyright are allowable. The leaked texts specifically say that the participating countries should confine these limitations "to certain special cases that do not conflict with a normal exploitation of the work, performance, or phonogram, and do not unreasonably prejudice the legitimate interests of the right holder."

It's important to note that the draft is just that—a draft. But the leak suggests that the US and Australia are pushing for more restrictive language, while countries like New Zealand, Chile, Malaysia, Brunei, and Vietnam are in favor of more open rules to allow "a party to carry forward and appropriately extend into the digital environment limitations and exceptions in its domestic laws." The US and Australia opposed that wording, and sought to change the language to suggest “that each party may, consistent with the foregoing, adopt or maintain... exceptions and limitations for the digital environment."

In other words, the US and Australia are saying a country can't just decide on "limitations and fair use" based on existing domestic IP laws, some of which may be quite broad. Instead, limitations must conform to international agreements, including the TPP, which can be more restrictive.

The 3-step test issue in these negotiations can be confusing, and some of the technical details are both not obvious and a matter of some controversy among experts. The basic contours of the negotiation are that copyright owners want a restrictive test to be applied to limit the permitted exceptions in national copyright laws. The so called 3-step test is found with various wordings in parts of the Berne Convention, the WTO TRIPS Agreement, the 1996 WIPO Copyright treaties (WCT and WPPT), and the new Beijing treaty. One part of the controversy concerns how the 3-step test actually works (what is the test?). Another concerns the application of the test to certain parts of the Berne Convention that are not now subject to the 3-step test (Such as Berne Article 2bis, 10, 10bis, 11bis(2), 13(1) and the Berne Appendix, as well as flexabilities in related rights treaties, or in the TRIPS, including TRIPS limits on remedies for infringement. What you can see in the leaked text is that the USA takes the most right-holder friendly position, followed closely by Australia. It is not obvious the USTR position is in the Interest of the USA itself, which has a strong technology and fair use industry, so much as in the interest in the special interest copyright lobbies that routinely extend job offers to ex-USTR employees.

I wrote some code shortly after starting my first job out of holiday. I'd love to still be paid for it 20+ years on, in fact, still be paid for it the day I die, and then for my children to carry on receiving money for it.If I was a musician, that'd be the case.

I wrote some code shortly after starting my first job out of holiday. I'd love to still be paid for it 20+ years on, in fact, still be paid for it the day I die, and then for my children to carry on receiving money for it.If I was a musician, that'd be the case.

If it's any consolation, the company you wrote that code for will be making money off it til the day you die and their kids will make money off it (if they go into the family business) afterwards. That's actually the better metaphor, since you basically are the musician, and your company is the record label.

Ideally, I'd rather see the royalties go to you (the programmer) and the musicians rather than the middle-men. But that's not how copyright works because you (and the musicians) don't have the billions of lobbying dollars and plush jobs to offer the government.

I think the likely scenario is that the US told Australia what it wanted and Australia, as always, bowed and scraped and spoke using His Master's Voice. Australia's decline into ultra-conservatism, and absolute lack of political back-bone is thoroughly depressing. Long gone are the days of the 'clever country'.

For those who are not aware, this is the Pacific Rim version of the ACTA treaty being foisted on the world by the USA Corporate Oligarchy. That's the specific reason why it is secret. They don't want the world to know what draconian propositions they are making in their efforts to inflict what amounts to Neo-Feudalism with the Corporate Oligarchy as our OVERLORDS, and we their customers the little peon SERFS.

IOW: This is just more of the same old bad biznizz that created our ongoing worldwide economic depression. It's self-destructive as well as abusive of customers, The Spirit Of The Age, sad to say.

Suggestion: Assist in the TPP's failure.

As a writer, I strongly support copyright. But no one needs the Corporate Oligarchy ruling over anything but their own individual companies.

I'm Australian, and hate the way our government loves to bend over for the US at any opportunity.Even NZ has more balls!

No it doesn't.

NZ holds more formal balls and dances than Australia does (per capita).

We already have our version of 3 strike copyright law backed by RIANZ (which is local extension of RIAA) complete with "You can't argue about it until AFTER your 4th strike" clause and "We, as the accuser, get to choose what's relevant to your defence, the defendant" clause.

Considering that US or Australia has more liberal Fair Use exceptions already, TPP means jack all as far as NZ is concerned.

It might LOOK like NZ has more balls if we look at this in isolated circumstances but it's because NZ already bent over and took it like a man.

I'm Australian, and hate the way our government loves to bend over for the US at any opportunity.Even NZ has more balls!

No it doesn't.

NZ holds more formal balls and dances than Australia does (per capita).

We already have our version of 3 strike copyright law backed by RIANZ (which is local extension of RIAA) complete with "You can't argue about it until AFTER your 4th strike" clause and "We, as the accuser, get to choose what's relevant to your defence, the defendant."

I like the way the article kindly gives Australia some weight, as if Australia is actually providing anything other than a vote for the USA.

Japan does the same thing to get whaling through; bribes and/or threatens weak countries into supporting them.

I don't know who's more pathetic, the USA, Australia or Japan.

The answer is..... Australia.

The US government may work for the best interest of the content industries, but at lease they're working for US content industries.

Our government (I'm australian) just seems to be happy to do what-ever the US want them to, and our opposition is no better, the only political party in Australia that doesn't seem to be content selling out the Australian public to the US is the Greens, and they tend to be more than a little crazy. So Australia gets my vote as most pathetic of the three.

In theory the US has a representative system of government. If treaties are being negotiated in secret from not only the people it purports to cover, but in secret from our representatives, I would say it's invalid. How are we to give input to our representatives if neither we nor they know what's being done?

I'd say it's safe to keep in mind that it's too early to tell the specifics of this, as we should not jump to conclusions. What's everybody make of this? I'm kind of leery of it myself until I learn more details.

The WIPO treaty says, like the Berne Convention, use "not inconsistent with commercial exploitation" can be permissible. This language was chosen to cover UK-style fair dealings, US-style fair use and continental European copyright codes.

That is to say, fair use is consistent with the Berne Convention and WIPO treaty language.

For a country like Australia, which has UK-style fair dealings, the Berne Convention test is more permissive that the current copyright arrangements. The Berne Convention test is implement in place in the Australian Copyright Act 1968 - s 200A. This applies to libraries and archives.

The fair use provision for the United States is 17 USC §107. If you read the relevant provisions in s200A and 17 USC §107, you'll see they're almost the same.

So the real news in this story is the potential liberalisation of and general adoption of the doctine of fair use into Australian copyright law via the TPP.

Might as well name all the bills Freddy Krueger since they keep coming back every time we get em killed. Sigh ...

HEY! My fellow American Ars readers! Why don't you do us all a favor come November? Get your butts out to the polls and help us vote these idiots out of office. If nothing else a good shake up would do us a world of good. The very worst that would happen is you lose ten minutes of your life and nothing changes.

Well Europe defeated ACTA in a very straightforward manner: * mobilized clever activists * mobilized crowds * enough noise to make the copyrights fascists be all whinny and defensive

And you know how the US defeated SOPA/PIPA: * mobilized clever activists * mobilized crowds * enough noise to make the copyrights fascists be all whinny and defensive

So, people of the Pacific Rim, you know what's left to do. I heard spring is the ideal season to march the streets of Australia and send those fuckers hide back under a rock

And organize Boycotts of all things BIG CONTENT.Stop giving them your money and use your money to Buy/Support INDIE & Local Art as well as saving some money to Buy Protest Supplies.Start fighting back now and in a big way !Fuck You MAFIAA & Kiss My Butt US Government.

HEY! My fellow American Ars readers! Why don't you do us all a favor come November? Get your butts out to the polls and help us vote these idiots out of office. If nothing else a good shake up would do us a world of good. The very worst that would happen is you lose ten minutes of your life and nothing changes.

Good luck. Both parties are sold out to the RIAA and the MPAA. That pretty much leaves a couple of people on the left and right (say Ron Paul, Ron Wyden, Daryl Issa) that apparently aren't their puppets (or the case of Ron Paul, stubborn principle). Not enough to matter, most of the time.

In theory the US has a representative system of government. If treaties are being negotiated in secret from not only the people it purports to cover, but in secret from our representatives, I would say it's invalid. How are we to give input to our representatives if neither we nor they know what's being done?

I, for one, am glad for the Hope, Change and Transparency Obama has brought to D.C.

Partisans, don't get your panties in a bunch. I know there are plenty of weenies in both parties who would sell out our rights.

I'd say it's safe to keep in mind that it's too early to tell the specifics of this, as we should not jump to conclusions. What's everybody make of this? I'm kind of leery of it myself until I learn more details.

Check out the link to the leaked text. Basically all of the countries are accepting or at least neutral towards promoting public-friendly copyright and internet freedom. Except for Australia, and the US. Don't you find it bizarre that in a treaty of 9 countries of the Pacific Rim, the US has its hands in it? And notice that the US/AU vote as a single block against every public-favoring motion.

It's incredibly depressing that one foreign nation who's geographical location doesn't even pertain to these affairs can single-handedly control the decisions of 9 others.

I wrote some code shortly after starting my first job out of holiday. I'd love to still be paid for it 20+ years on, in fact, still be paid for it the day I die, and then for my children to carry on receiving money for it.If I was a musician, that'd be the case.

* tolkein* the author of winnie the poo* elvis

I'll take "Who are people and their estates still profiting from the original creators works even after that person has died" for $1000 please, Alex.

Yet, people will still share and download copyrighted works. Why? It's because little pieces of paper with stern sounding words can't stop copying and you can't stop the internet from doing what it was designed to do either. Computers and the internet are copying machines, you can't stop them from copying because they would no longer function. I doubt many companies would give up their computers just so the entertainment industry could have a monopoly on distribution. The TPP is a waste of time and taxes. It will never work.

My prediction is that the entertainment industry will either blow themselves up or push the people to do it for them. There's going to be billions more internet users in the coming years, how will they stop them all? The internet and computers have changed the rules; everyone on the internet is now a distributor. The incumbents need to realize that their days as gatekeepers of content are over and they can never get it back. Selling content as a product has been exposed for the illusion that it is. The only thing that will survive is entertainment as a service.

One of the signs of an emerging tyranny is censorship. Ironic then that copyright was created as a method of censorship after the monarchy in England freaked out that the printing press would allow people to print seditious books.

1.Dose it generate revenue via direct or indirect information regarding the location(s) or gain of the item(s) in question, or dose it generate a revenue via merchandise or donations that are sold primarily due to traffic brought about by sharing information regarding the location(s) or gain of the item(s) in question, if not its untouchable if so dose it follow the below.

2.How much of the content is changed for commentary? If over 40% of the whole item in question rated by time and quality then the item in question is untouchable if so dose it follow the below..

3.For educational purposes a profit may not be generated from the item(s) in question and distribution of item(s) not covered in the above must be behind a locked protocol and limited to authorized personal that is not the general public, if it follows the above or this rule then its untouchable .

Despite the language mentioned in the draft, it's good to see that the parties tot he agreement are at the very least considering fair use. It may be too much to hope that a proper "balance" will be struck, but again, the mere fact that user rights are being discussed is a positive.

I like the way the article kindly gives Australia some weight, as if Australia is actually providing anything other than a vote for the USA.

Japan does the same thing to get whaling through; bribes and/or threatens weak countries into supporting them.

I don't know who's more pathetic, the USA, Australia or Japan.

Pretty sure you answered your own question; Australia seems like your winner. They bend to the US's will on almost all international issues. At least Japan tries to resist and then realizes they get billions of dollars in support from the US every year and would of been royally screwed without the bases in Okinawa to supply direct medical support after the Earthquake/Tsunami.

Despite the language mentioned in the draft, it's good to see that the parties tot he agreement are at the very least considering fair use. It may be too much to hope that a proper "balance" will be struck, but again, the mere fact that user rights are being discussed is a positive.

It's a very minor victory. Also, keep in mind that the three-step test is ridiculous. The only time it's been tried was with the Fairness in Music Licensing Act, a rider to the CTEA. This bill allowed small bars and restaurants to play radios without paying licensing fees to ASCAP and other such agencies. Despite the fact that radio stations had already paid those fees, the WTO sided against the US and a settlement was reached so that we paid European agencies millions of dollars to shut up and leave us alone. The three step test doesn't even allow a country to protect citizens from double dipping.

Despite the language mentioned in the draft, it's good to see that the parties tot he agreement are at the very least considering fair use. It may be too much to hope that a proper "balance" will be struck, but again, the mere fact that user rights are being discussed is a positive.

The fact that user rights are being discussed in secret only by corporate interests, deliberately hiding the discussions from the users who would be affected, does not indicate a well-intentioned effort.

And organize Boycotts of all things BIG CONTENT.Stop giving them your money and use your money to Buy/Support INDIE & Local Art as well as saving some money to Buy Protest Supplies.Start fighting back now and in a big way !Fuck You MAFIAA & Kiss My Butt US Government.

Boycott is really not that useful, except if it's very significant and for a long period.

A "boycott day" is invisible to them, and if you can lower their income by 10% (an incredibly successful boycott by most standards) they will simply blame the loss on piracy...